Citation Nr: 1200642
Decision Date: 01/09/12 Archive Date: 01/20/12
DOCKET NO. 08-33 028 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Connolly, Counsel
INTRODUCTION
The Veteran had active military service from June 1964 to June 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
FINDING OF FACT
The Veteran meets the schedular criteria for TDIU and his service-connected disabilities preclude him from securing or following a substantially gainful occupation.
CONCLUSION OF LAW
The Veteran is individually unemployable by reason of his service-connected disabilities. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial.
Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a).
The Veteran is service-connected for posttraumatic stress disorder (PTSD), rated as 50 percent disabling; prostate cancer, rated as 40 percent disabling; chronic kidney disease, rated as 30 percent disabling; diabetes mellitus, Type II (DM), with bilateral lower extremity onychomycosis, rated as 20 percent disabling; peripheral neuropathy of the left lower extremity, rated as 10 percent disabling; peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; peripheral neuropathy of the left upper extremity, rated as 10 percent disabling; peripheral neuropathy of the right upper extremity, rated as 10 percent disabling; and erectile dysfunction, rated as noncompensable. The combined rating is 90 percent.
The Veteran meets the schedular criteria per 38 C.F.R. § 4.16(a). He clearly has a myriad of service-connected disabilities. With regard to nonservice-connected disabilities, he has essential hypertension and hyperlipidemia. The Veteran was afforded extensive VA examinations in February 2008. In sum, the psychiatric examination indicated that the Veteran is unable to work due to his depression and anxiety. However, it was not felt that PTSD as a separate disease process impaired his employability. With regard to his other service-connected disabilities, in pertinent part, the DM examiner indicated that the Veteran would not be able to have any job where he would need to be barefoot, wearing tight boots, or that involved ladders, climbing, prolonged walking, or heights. In October 2009, a psychiatric examiner provided an opinion which indicated that the Veteran's depression was not secondary to PTSD, but was rather related to medical problems.
The Veteran maintains that he was medically retired from his employment with the United States Postal Service. Correspondence from that agency indicated that information had been forwarded, but it is not associated with the claims file. A lay statement of F.P.W. has been received in which she states that the Veteran has been in a state of medical decline and was unable to work.
Although the October 2009 medical opinion did not specify which disabilities caused the depression and although she referenced the Veteran's behavior as being part of his personality, the Board observes that it is reasonable to find that the great many disabilities, as indicated above, which are service connected, have resulted in depression. Also, these disabilities have reduced the Veteran's general functioning and his quality of life. These disabilities, with the associated depression, preclude the Veteran from employment. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C.A. § 5107. The Board has resolved all reasonable doubt in this case in the Veteran's favor. Accordingly, a total disability rating based upon individual unemployability due to service-connected disabilities is warranted.
ORDER
TDIU is granted, subject to the law and regulations governing the payment of monetary benefits.
____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs